Citation NR: 9716975
Decision Date: 05/16/97 Archive Date: 05/29/97
DOCKET NO. 95-41 027 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs Committee on Waivers and
Compromises of the Regional Office in Fort Snelling,
Minnesota
THE ISSUE
Entitlement to a waiver of recovery of an overpayment of
Department of Veterans Affairs (VA) improved pension benefits
in the amount of $9,812.13.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Associate Counsel
INTRODUCTION
The veteran had active service from January 1951 to August
1952.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a March 1995 decision of the VA
Committee on Waivers and Compromises (Committee) of the
Regional Office (RO) in Fort Snelling, Minnesota. The notice
of disagreement was received in April 1995. The statement of
the case was sent to the veteran in June 1995. The
substantive appeal was received in August 1995.
The Board notes that the veteran currently has a claim
pending for entitlement to additional VA pension benefits for
his dependents. The Board refers this issue to the RO for
appropriate action. In addition, the Board notes that the
veteran is seeking reimbursement for unauthorized medical
expenses. The Board also refers this issue to the RO for
appropriate action.
REMAND
In a March 1994 letter, the veteran was advised that the VA
would reduce his pension benefits effective February 1, 1991,
since his former spouse had income during 1991 which was not
properly reported to the VA as the veteran and his former
spouse were still married at that time. The veteran was
advised that he had 60 days to submit evidence, but that
after that time, the proposed reduction would be effectuated.
The veteran was also informed that he had 30 days to request
a personal hearing. Enclosed with the March 1994 letter were
VA forms to be completed by the veteran. The veteran
completed the requested forms and returned them to the VA
within approximately one month.
In a June 15, 1994 letter, the veteran was advised that the
action outlined in the aforementioned March 1994 letter had
been implemented and that his benefits had been reduced. The
veteran was informed that this adjustment had resulted in an
overpayment of benefits. The letter stated that the veteran
would subsequently be informed of the exact amount of the
overpayment and of information regarding repayment of the
debt. The veteran was provided a VA Form 4107 which informed
him that he had one year to appeal the reduction of his
benefits. The veteran was not informed of any time limit for
requesting a waiver of the recovery of the debt. However, in
the statement of the case, the RO referred to a June 27, 1994
letter which informed the veteran of the amount of the
overpayment, advised him of his right to file for a waiver of
the recovery of the debt at issue, and advised him of the
time limit that he had to file for a waiver.
In January 1995, the veteran contacted the RO to request
clarification as to why he had not received benefits since
August 1994. The RO apparently accepted this correspondence
as a request for waiver of the recovery of the debt referred
to in the June 1994 letter. In a March 1995 decision, the
Committee denied the veteran’s request for waiver as the
veteran did not request a waiver of the recovery of the debt
within 180 days of the notice of the debt as required under
38 U.S.C.A. § 5302 and 38 C.F.R. § 1.963(b)(2). The veteran
appealed this determination.
The Board notes that it is unclear whether or not the veteran
was apprised of the 180 day time limit for requesting a
waiver of the recovery of the debt as the June 27, 1994
letter is not of record. Therefore, the Board finds that the
RO should associate with the claims file a copy of the June
27, 1994 letter. In the event that the veteran was not
informed in the June 27, 1994 letter that he had 180 days to
request a waiver or if the June 27, 1994 letter no longer
exists, then the Committee must adjudicate his request for
waiver on the merits as a timely request. If the June 27,
1994 letter is available for appellate review, the RO should
associate the letter with the claims file and return it to
the Board for appellate review.
Accordingly, this matter is REMANDED for the following
action:
1. The RO should associate with the
claims file a copy of the June 27, 1994
letter which apparently informed the
veteran of the amount of the overpayment,
advised him of his right to file for a
waiver of the recovery of the debt at
issue, and advised him of the time limit
that he had to file for a waiver. If the
June 27, 1994 letter is available for
appellate review, the RO should associate
the letter with the claims file and
return it to the Board for appellate
review.
2. In the event that the veteran was not
informed in the June 27, 1994 letter that
he had 180 days to request a waiver or if
the June 27, 1994 letter no longer
exists, then this case should be referred
to the Committee. The Committee should
adjudicate the veteran’s request for
waiver on the merits as a timely request.
If that claim is not resolved to his
satisfaction, the veteran and his
representative should so be advised. If
the veteran files a timely notice of
disagreement, he and his representative
should be provided with a statement of
the case as required by 38
U.S.C.A. § 7105(d) (West 1991) as to this
issue.
No action is required of the veteran until further notice.
The Board expresses no opinion, either factual or legal, as to
the ultimate determination warranted in this case pending
completion of the requested development.
RICHARD D. TURANO
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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